Citation Nr: 18147845 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-12 904 DATE: November 6, 2018 ORDER Service connection for a bilateral feet and heel disability is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis or functional impairment caused by a bilateral feet and heel disability and it was not incurred in service nor to a compensable degree within one year of service discharge. 2. The Veteran does not have a current diagnosis of PTSD, under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 3. The Veteran’s claimed in-service stressor is consistent with the circumstances, conditions, and hardships of his service. 4. The Veteran has a current diagnosis of other specified trauma and stressor related disorder under the DSM-5, which is related to the claimed in-service stressor. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral feet and heel disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). 3. The criteria for service connection for an acquired psychiatric disorder other than PTSD, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1969. A claim for service connection for a mental disability may encompass claims for any psychiatric disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary of VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran’s claim for service connection for anxiety pursuant to Clemons and re-characterized it as shown on the cover page of this decision. Service Connection—Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Foot and Heel Disorder The Veteran contends that service connection for a bilateral foot and heel disability is warranted because it was incurred in service or otherwise was a result of service. The Board finds that service connection for a bilateral feet and heel disability is not warranted because the preponderance of the evidence is against a finding of a current bilateral foot and/or heel disability. A review of the Veteran’s service treatment records reveals a June 1969 complaint of left ankle pain after playing basketball. The record indicates that the Veteran’s left ankle was swollen and treated with an ace wrap. Service treatment records are otherwise silent for any treatment or diagnosis of a chronic bilateral foot and/or heel disorder. Moreover, an August 1969 separation examination report showed a normal clinical evaluation of the “feet” and “lower extremities.” The Veteran was assigned a “1” rating under “L” assessing lower extremities under the PULHES profile system, indicating that the Veteran’s lower extremities were in a high level of fitness at separation. In an accompanying August 1969 Report of Medical History, completed by the Veteran at service separation, the Veteran specifically indicated that his health was “good” and answered “no” when asked if he had or ever had “swollen or painful joints,” “cramps in your legs,” “history of broken bones,” “arthritis or rheumatism,” “bone, joint, or other deformity,” “lameness,” “loss of arm, leg, finger, or to,” “trick or locked knee,” “foot trouble,” “neuritis,” and “paralysis.” Further, the Veteran checked “no” when asked if he “ever had any illness or injury other than those already noted.” The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. This is evidence against continuity of symptomology or a chronic disability related to the June 1969 complaint of left ankle pain in service. The Veteran does not proffer any medical evidence establishing a current diagnosis of a bilateral feet and heel disability during or in close proximity to the appeal period. The Board finds the Veteran to be competent and credible in reporting observable symptomatology. However, lay assertions do not constitute a competent clinical diagnosis of an existing a bilateral feet and heel disability. See 38 C.F.R. § 3.159(a)(1). The Veteran’s lay assertions cannot constitute competent medical evidence in support of a current diagnosis, because he has not demonstrated the requisite medical training or expertise. The Board considered Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding veteran’s pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110 (2016)) and other relevant authorities. These authorities do not support a finding that the Veteran has a current bilateral feet and heel disability. The Veteran notably has not made any specific contentions regarding current, subjective bilateral feet and heel symptoms such as pain, or how he believes any such alleged symptoms have resulted in specific functional impairments. Cf. Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, “pain itself does not rise to the level of functional loss;” “pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;” and “painful motion alone is not [the equivalent of] limited motion” (internal quotation marks omitted)); Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (disability occurs “if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance” (citing 38 C.F.R. § 4.40)); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (“disability” in VA regulations is “generally associated with the veteran’s inability to perform certain acts”). Moreover, even assuming that the Veteran subjectively experiences bilateral foot and heel pain, there is no objective medical evidence of record that any current symptoms such as pain have resulted in functional impairment in earning capacity. Saunders at 28. While the Veteran has an in-service incurrence of left ankle pain, in the absence of a showing of functional impairment or a current diagnosis for a bilateral feet and heel disability, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Saunders, 2018 U.S. App. LEXIS 8467. As the preponderance of the evidence is against the claim of service connection for a bilateral feet and heel disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. PTSD Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran asserts that service connection for PTSD is warranted because it is caused by or otherwise related to his military service. The Board finds that the preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD, which conforms to DSM-5, as specifically required for service-connection for PTSD; therefore, service connection for PTSD is not warranted. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran was provided an initial PTSD VA examination in February 2015. The examiner specifically indicated that the Veteran did not meet the diagnosis of PTSD, which conformed with the DSM-5 criteria. The Veteran has not offered probative and competent medical evidence establishing a diagnosis of PTSD. Lay assertions do not constitute a competent clinical diagnosis of PTSD. See 38 C.F.R. § 3.159(a)(1). The February 2015 VA examiner made a specific finding that the Veteran did not have a diagnosis of PTSD. Further, in the Veteran’s March 2017 substantive appeal (VA Form 9), the Veteran requested an examination and opinion for his PTSD. However, the Veteran had already been afforded a VA examination in February 2015 and had not provided additional medical evidence of a diagnosis, therefore, the Board finds that an additional examination is not necessary. The evidence also includes a March 2017 correspondence from the Veteran’s Congresswoman’s office, which further indicated that the Veteran “never had a real diagnosis.” In the absence of a qualifying current diagnosis for PTSD, which conforms to DSM-5, service connection for PTSD, cannot be established. See 38 C.F.R. §§ 3.304(f), 4.125(a); Brammer, 3 Vet. App. 223. The preponderance of the evidence is against the claim of service connection for PTSD, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder other than PTSD As to a current disability, the Veteran was afforded a VA examination for PTSD in February 2015 and the examiner confirmed a diagnosis of other specified trauma and stressor related disorder. Therefore, the first element of service connection is met. The evidence supports a finding that the Veteran was engaged in combat with the enemy. During the February 2015 VA examination, the Veteran reported multiple episodes of enemy contact in reconnaissance. The Veteran’s Certificate of Release or Discharge from Active Duty (DD Form 214) reflects that the Veteran was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantryman Badge; amongst other decorations. Military personnel records reflect the Veteran’s military occupational specialty (MOS) as armor intelligence specialist. The Board finds the Veteran’s statements to be consistent with the circumstances, conditions, and hardships of his service. The evidence also supports a link, or nexus, between the Veteran’s current acquired psychiatric disorder and his in-service stressor. Following an examination in February 2015, the VA examiner opined that based on history, current presentation, and the type of symptoms, the Veteran’s current psychiatric disorder is directly related to his reported stressor. The medical opinion is competent, credible, and probative evidence in support of the Veteran’s claim. Therefore, the evidence supports the finding of a nexus between the Veteran’s in-service stressor and his other specified trauma and stressor related disorder. Based on the above, the Board finds that the Veteran has a qualifying diagnosis of an acquired psychiatric disorder, other specified trauma and stressor related disorder, and the claimed in-service stressor is related to the Veteran engaging in combat with the enemy. Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence demonstrates that the Veteran’s current psychiatric disorder is etiologically related to his claimed in-service stressor. For these reasons, the Board finds that the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is needed for a medical opinion as to whether the Veteran’s claimed skin cancer is related to herbicide exposure during service. See 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is presumed to have been exposed to herbicides given his service in the Republic of Vietnam during the Vietnam era. However, skin cancer is not one of the diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). That fact notwithstanding, a claimant may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran requested a VA examination for his claimed skin cancer in a March 2017 substantive appeal (VA Form 9). There is no medical evidence addressing a nexus between the Veteran’s claimed skin cancer and herbicide exposure, therefore, the Board finds that a medical opinion is necessary before making a determination on the claim. A remand is necessary to provide the Veteran with a VA examination and medical opinion. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his claimed skin cancer to determine the nature and likely etiology of the claimed skin disorder. The VA examiner is asked to address the following: (a.) List all current diagnoses pertaining to the Veteran’s skin. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the skin disorder was incurred in service or is otherwise related to service, to include exposure to herbicide agents. (c.) The rationale for all opinions expressed must be provided. 2. Then, readjudicate the claim on appeal. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel